HÉBERT: Gender and language dash Indigenous dreams

Supreme Court of Canada nominee Justice Sheilah Martin is greeted by members of Parliament and the Senate as she prepares take part in a question and answer session. (FRED CHARTRAND / CP)

It is a sign of the times that decisively mixed reviews attended Prime Minister Justin Trudeau’s latest Supreme Court appointment.

The qualifications of Alberta justice Sheilah Martin had little to do with the somewhat cool reception. Her credentials are impeccable and the court will be richer for her contribution.

She also fits Trudeau’s goals of a gender-balanced, functionally bilingual top court.

But for the many who had hoped the prime minister would appoint the first Indigenous Supreme Court member, the choice was a bitter disappointment.

Yet Trudeau did not pass over an Indigenous candidate on the way to selecting Martin. A senior source told the Star none of the three applicants who made the shortlist drafted by a screening committee chaired by former prime minister Kim Campbell was Indigenous.

Trudeau could have looked beyond that list. But chances are he would have had to set aside either his gender parity objective or his bilingualism requirement or both to propose an Indigenous appointee.

He might also have had to settle for a less accomplished jurist. Campbell said the three candidates whose names were submitted to the Prime Minister stood head-and-shoulder above the other 11 applicants.

Based on Martin’s appearance in front of a committee of parliamentarians on Tuesday, that assessment took into account the candidate’s judicial track record, not just the demographics of her profile.

Critics of Trudeau’s choice believe he should have short-circuited the screening process if that is what it took to arrive at an Indigenous appointment. And some are arguing the search for functionally bilingual judges is unduly shutting out otherwise qualified Indigenous candidates.

There has never been unanimous support for the notion that Canada’s top judges should be able to hear and adjudicate cases in either French or English without the assistance of simultaneous translation. But this is a new twist on an old argument and those putting it forward hail from unlikely quarters.

Under Jack Layton and Thomas Mulcair, the NDP has led the battle to put into law the requirement that future Supreme Court justices be functionally bilingual.

Over the past decade, that battle has probably done as much to put the party on the Quebec map as its controversial acceptance of the simple majority vote as the referendum threshold to reach to trigger the province’s secession process.

At a time when a majority of Quebecers are not inclined to revisit the independence issue, most are more interested in ensuring their language rights are respected within Canada’s national institutions than in the conditions under which they could leave the federation.

But in this Parliament, no MP has been as adamant about the need to relax the language requirements for Indigenous candidates to the top court than Quebec’s Roméo Saganash.

The NDP’s leading Indigenous rights champion has also argued that the very notion of official bilingualism is a colonial one.

On the latest Supreme Court appointment, rookie NDP Leader Jagmeet Singh initially sided with Saganash, only to reverse his stance in the face of a simmering caucus backlash.

On Tuesday, Trudeau’s proposed official languages commissioner Raymond Théberge stunned many MPs when he told a parliamentary committee he supported the notion of a functionally bilingual Supreme Court bench in theory but that he had some difficulty with it in practice.

Théberge said a fully bilingual court could be one that fails to reflect Canada’s diversity.

But if it were acceptable for the country’s highest court to shrug off the concept of Canada’s linguistic duality, what other federal institutions would similarly find grace in the eyes of the next official languages commissioner?

The ability of the members of Canada’s top court to function in both official languages is not a theoretical concept. Absent that ability, the onus is on francophone lawyers to either argue in a second language or to risk having the subtleties of their legal points lost in the translation offered to the unilingual judges. Ditto for the French-speaking justices as they communicate in writing or verbally with their colleagues.

In practice, that amounts to making English the sole working language of the top court.

There is a large but fragile consensus behind Trudeau’s goal of an overdue reconciliation with Canada’s Indigenous peoples. That consensus crosses language lines.

But it will be hard to sustain if the country’s commitment to linguistic duality is cast as an impediment to that reconciliation rather than treated as a fundamental part of its diversity.